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Supreme Court Says Railroad Law Preempts Claims on Asbestos Exposure in Repair Work

Thursday, March 1, 2012

By Martina S. Barash

A federal law dating from the heyday of steam trains governs locomotive equipment and preempts state-law claims based on a worker's exposure to asbestos-containing brakes and insulation at railroad maintenance facilities, the U.S. Supreme Court ruled Feb. 29 (Kurns v. Railroad Friction Products Corp., U.S., No. 10-879, 2/29/12).

All the justices agreed that the Locomotive Inspection Act, as interpreted by a 1926 Supreme Court decision, forecloses state-law claims that the asbestos-containing products were defectively designed.

But the court split 6–3 on whether the law's preemptive effect extends to claims that the products' manufacturers should have warned welder and machinist George Corson about the dangers posed by asbestos.

Enacted in 1911 as the Boiler Inspection Act, the law requires locomotive parts to be “in proper condition and safe to operate.”

The majority, in an opinion by Justice Clarence Thomas, found the failure-to-warn claims were also preempted by the federal law.

Justice Sonia Sotomayor, in a partial dissent joined by Justices Ruth Bader Ginsburg and Stephen G. Breyer, made a distinction between the design defect and failure-to-warn claims, saying the theory behind the failure-to-warn claims “does not implicate a product's physical composition at all” and so is not affected by the Locomotive Inspection Act occupying the “field” of locomotive equipment.

An ‘Outlier' Ruling?

“This is an unusual, outlier decision,” said Robert S. Peck of the Center for Constitutional Litigation PC in Washington, D.C., whose firm worked on an amicus brief in the case for the American Association for Justice.

“The court, over the last 30 years, has talked about how the type of preemption that forecloses any compensatory remedy is an unusually powerful form of preemption that the court will rarely adopt unless Congress has made it eminently clear. There's no discussion of that approach in this opinion,” Peck told Bloomberg BNA Feb. 29.

“If faced with a more modern statute that there isn't prior precedent on, the court would be hard-pressed to assume that Congress had wiped out all compensatory remedies,” he added.

Asbestos Exposure in Rail Yard

Corson, who worked for the Chicago, Milwaukee, St. Paul & Pacific Railroad from 1947 to 1974, installed asbestos-containing brake shoes on trains and stripped asbestos insulation from boilers, according to the court. He developed mesothelioma, from which he later died.

In 2007, before his death, Corson and his wife sued 59 defendants, of which two, Railroad Friction Products Corp. and Viad Corp., were involved in this appeal. His executror was substituted as a party after his death.

In the U.S. District Court for the Eastern District of Pennsylvania, RFPC and Viad sought and obtained summary judgment on preemption grounds. The U.S. Court of Appeals for the Third Circuit affirmed the decision in 2010 (40 OSHR 799, 9/23/10).

The Supreme Court granted review in June 2011 (41 OSHR 530, 6/16/11).

Precedent From 1926

The Supreme Court's opinion did not focus on the centerpiece of the oral argument, which was whether a locomotive in a rail yard is “in use.” The plaintiffs, Corson's widow and executror, argued the trains in the repair shop were not in use and therefore did not fall within the federal act's preempted field.

The court rejected this argument based on the interpretation of the Locomotive Inspection Act provided in Napier v. Atlantic Coast Line R. Co., 272 U.S. 605 (1926), an 85-year-old Supreme Court case.

“In Napier, the Court held that Congress, in enacting the LIA, ‘manifest[ed] the intention to occupy the entire field of regulating locomotive equipment,' and the Court did not distinguish between hazards arising from repair and maintenance as opposed to those arising from use on the line,” Thomas wrote.

“The pre-empted field as defined by Napier plainly encompasses the claims at issue here,” he said.

Sotomayor, in her opinion, agreed that Napier‘s interpretation of the Locomotive Inspection Act meant that the statute occupied the field of locomotive equipment.

“Perhaps this Court might decide Napier differently today,” she wrote, but the dissenters felt constrained by the doctrine of respect for precedents—known as stare decisis—particularly as it relates to statutory interpretation.

Precedent an ‘Anachronism.'

Justice Elena Kagan, who wrote a concurring opinion, called Napier “an anachronism” but said, “Napier governs so long as Congress lets it.”

For the majority, Napier‘s sweep defeated all of the plaintiffs’ arguments. In addition to wiping out the design defect and failure-to-warn claims, Thomas also said Locomotive Inspection Act's preemptive reach extended to claims against manufacturers, even though the statute originally applied only to common carriers, and applied to state common-law duties as well as regulations.

David C. Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel PLLC in Washington, D.C., and Richard Phillips Myers of Paul, Reich & Myers PC in Philadelphia represented Corson's estate and widow.

Jonathan D. Hacker of O'Melveny & Myers LLP in Washington represented Viad.

James C. Martin of Reed Smith LLP in Pittsburgh represented RFPC.

For More Information

The opinion is available at http://op.bna.com/pslr.nsf/r?Open=mbah-8rxryy.